[Cite as State v. Henderson, 2014-Ohio-2991.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : 

DONALD R. HENDERSON : Case No. 13-CA-61 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. 2012-CR-533 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: July 2, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOCELYN S. KELLY THOMAS R. ELWING 

239 West Main Street 60 West Columbus Street 

Suite 101 Pickerington, OH 43147 

Lancaster, OH 43130 
Fairfield County, Case No. 13-CA-61 2 

Farmer, P.J. 

{¶1} On January 7, 2011, the Fairfield County Grand Jury indicted appellant, 

Donald Henderson, on two counts of rape in violation of R.C. 2907.02 (Case No. 2011-

CR-7). 

{¶2} On January 11, 2011, appellant entered a plea of not guilty by reason of 

insanity and filed a motion to determine competency. Psychiatric evaluations were 

ordered. Hearings were held on March 4, and April 26, 2011. By entry filed April 29, 

2011, the trial court found appellant incompetent to stand trial, and ordered treatment at 

Appalachian Behavioral Healthcare for restoration to competency. 

{¶3} A hearing on appellant's competency was held on February 8, 2012. By 

entry filed February 21, 2012, the trial court found appellant competent to stand trial. 

{¶4} Following an additional evaluation regarding appellant's not guilty by 

reason of insanity plea, hearings were held on July 20, and September 10, 2012. By 

agreed entry filed September 25, 2012, appellant was again found to be incompetent to 

stand trial, and restoration treatment was ordered. 

{¶5} On November 30, 2012, appellant was re-indicted on the same two rape 

counts (Case No. 2012-CR-533). The state dismissed the first indictment on December 

18, 2012. On January 23, 2013, appellant entered a plea of not guilty by reason of 

insanity. 

{¶6} On February 12, 2013, appellant filed a motion to dismiss on speedy trial 

grounds, and on March 6, 2013, filed a motion to dismiss the indictment for violating the 

one year limitation for restoration to competency pursuant to R.C. 2945.38(C). On 

March 22, 2013, the state filed a motion to retain jurisdiction pursuant to R.C. 2945.39. 
Fairfield County, Case No. 13-CA-61 3 

{¶7} By entry filed April 1, 2013, the trial court determined the maximum period 

for restoration to competency had expired on January 12, 2013 as argued by appellant. 

{¶8} A hearing to determine the trial court's continuing jurisdiction was held on 

June 12, 2013. 

{¶9} By entry filed July 3, 2013, the trial court denied appellant's motions to 

dismiss. 

{¶10} A hearing on appellant's competency to stand trial was held on August 1, 

2013. By entries filed August 15, 2013, the trial court found continuing jurisdiction and 

committed appellant to Appalachian Behavioral Healthcare, ordered appellant to 

undergo an additional evaluation to determine competency to stand trial, and appellant 

was found incompetent to stand trial as of January 12, 2013. 

{¶11} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶12} "THE TRIAL COURT ERRED IN CONTINUING JURISDICTION UNDER 

R.C. 2945.39(A)(2), WHICH WAS UNCONSTITUTIONAL AS APPLIED, IN VIOLATION 

OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW." 

II 

{¶13} "THE TRIAL COURT ERRED IN HOLDING A HEARING TO CONTINUE 

JURISDICTION UNDER R.C. 2945.39(A)(2) WHEN THE STATUTORY CONDITIONS 

PRECEDENT FOR SUCH HEARING WERE NOT MET." 
Fairfield County, Case No. 13-CA-61 4 

III 

{¶14} "THE TRIAL COURT ERRED IN FINDING THAT CONTINUED 

JURISDICTION UNDER R.C. 2945.39(A)(2) WAS SUPPORTED BY CLEAR AND 

CONVINCING EVIDENCE." 

IV 

{¶15} "THE TRIAL COURT ERRED IN FAILING TO DISMISS THE 

INDICTMENT FOR VIOLATION OF THE RIGHT TO SPEEDY TRIAL." 

I, II, III 

{¶16} Appellant claims the trial court erred in continuing jurisdiction pursuant to 

R.C. 2945.39(A)(2) because the statute as applied was unconstitutional and violated his 

rights to due process, the statutory conditions precedent were not met, and the decision 

was not supported by clear and convincing evidence. We disagree. 

{¶17} The specific entries in question are the August 15, 2013 orders for 

continuing jurisdiction and commitment of appellant to Appalachian Behavioral 

Healthcare pursuant to R.C. 2945.38(B) and (C), 2945.39(A), (B) and (D), and 2945.401 

which state the following in pertinent part, respectively: 

[R.C. 2945.38] (B)(1)(a) If, after taking into consideration all 

relevant reports, information, and other evidence, the court finds that the 

defendant is incompetent to stand trial and that there is a substantial 

probability that the defendant will become competent to stand trial within 

one year if the defendant is provided with a course of treatment, the court 

shall order the defendant to undergo treatment. If the defendant has been 
Fairfield County, Case No. 13-CA-61 5 

charged with a felony offense and if, after taking into consideration all 

relevant reports, information, and other evidence, the court finds that the 

defendant is incompetent to stand trial, but the court is unable at that time 

to determine whether there is a substantial probability that the defendant 

will become competent to stand trial within one year if the defendant is 

provided with a course of treatment, the court shall order continuing 

evaluation and treatment of the defendant for a period not to exceed four 

months to determine whether there is a substantial probability that the 

defendant will become competent to stand trial within one year if the 

defendant is provided with a course of treatment. 

(2) If the court finds that the defendant is incompetent to stand trial 

and that, even if the defendant is provided with a course of treatment, 

there is not a substantial probability that the defendant will become 

competent to stand trial within one year, the court shall order the 

discharge of the defendant, unless upon motion of the prosecutor or on its 

own motion, the court either seeks to retain jurisdiction over the defendant 

pursuant to section 2945.39 of the Revised Code***. 

(C) No defendant shall be required to undergo treatment, including 

any continuing evaluation and treatment, under division (B)(1) of this 

section for longer than whichever of the following periods is applicable: 

(1) One year, if the most serious offense with which the defendant 

is charged is one of the following offenses: 
Fairfield County, Case No. 13-CA-61 6 

(a) Aggravated murder, murder, or an offense of violence for which 

a sentence of death or life imprisonment may be imposed; 

(b) An offense of violence that is a felony of the first or second 

degree[.] 

[R.C. 2945.39] (A) If a defendant who is charged with an offense 

described in division (C)(1) of section 2945.38 of the Revised Code is 

found incompetent to stand trial, after the expiration of the maximum time 

for treatment as specified in division (C) of that section or after the court 

finds that there is not a substantial probability that the defendant will 

become competent to stand trial even if the defendant is provided with a 

course of treatment, one of the following applies: 

(2) On the motion of the prosecutor or on its own motion, the court 

may retain jurisdiction over the defendant if, at a hearing, the court finds 

both of the following by clear and convincing evidence: 

(a) The defendant committed the offense with which the defendant 

is charged. 

(b) The defendant is a mentally ill person subject to hospitalization 

by court order or a mentally retarded person subject to institutionalization 

by court order. 

(B) In making its determination under division (A)(2) of this section 

as to whether to retain jurisdiction over the defendant, the court may 

consider all relevant evidence, including, but not limited to, any relevant 

psychiatric, psychological, or medical testimony or reports, the acts 
Fairfield County, Case No. 13-CA-61 7 

constituting the offense charged, and any history of the defendant that is 

relevant to the defendant's ability to conform to the law. 

(D)(1) If the court conducts a hearing as described in division (A)(2) 

of this section and if the court makes the findings described in divisions 

(A)(2)(a) and (b) of this section by clear and convincing evidence, the 

court shall commit the defendant, if determined to require mental health 

treatment, either to the department of mental health and addiction services 

for treatment at a hospital, facility, or agency as determined clinically 

appropriate by the department of mental health and addiction services or 

to another medical or psychiatric facility, as appropriate.***In determining 

the place of commitment, the court shall consider the extent to which the 

person is a danger to the person and to others, the need for security, and 

the type of crime involved and shall order the least restrictive alternative 

available that is consistent with public safety and the welfare of the 

defendant. In weighing these factors, the court shall give preference to 

protecting public safety. 

[R.C. 2945.401] (A) A defendant found incompetent to stand trial 

and committed pursuant to section 2945.39 of the Revised Code or a 

person found not guilty by reason of insanity and committed pursuant to 

section 2945.40 of the Revised Code shall remain subject to the 

jurisdiction of the trial court pursuant to that commitment, and to the 

provisions of this section, until the final termination of the commitment as 

described in division (J)(1) of this section. If the jurisdiction is terminated 
Fairfield County, Case No. 13-CA-61 8 

under this division because of the final termination of the commitment 

resulting from the expiration of the maximum prison term or term of 

imprisonment described in division (J)(1)(b) of this section, the court or 

prosecutor may file an affidavit for the civil commitment of the defendant 

or person pursuant to Chapter 5122. or 5123. of the Revised Code. 

{¶18} The trial court's July 3, and August 15, 2013 entries outline the tortured 

procedural history of this case. There is no challenge to the trial court's conclusion that 

the dismissal of the first indictment and the re-indictment did not affect the statutory time 

limitations and conditions precedent of R.C. 2945.38(C) and 2945.39(A)(2). By entry 

filed April 1, 2013, the trial court determined the one year passage of time under R.C. 

2945.38(C) expired on January 12, 2013 as argued by appellant; however, on January 

12, 2013, the first indictment was already dismissed and the re-indictment had been 

filed on November 30, 2012. Also, on February 21, 2012 in the first case, appellant was 

found competent to stand trial. Thereafter, appellant was found incompetent to stand 

trial by agreed entry filed September 25, 2012, and was ordered to treatment for 

restoration of competency. For 217 days, despite continued re-evaluations, appellant 

was competent to stand trial and was not in treatment with Appalachian Behavioral 

Healthcare. 

{¶19} This very unusual fact pattern leaves this court to analyze two questions: 

1) Did the February 21, 2012 determination of competency turn off the one year time 

clock for 217 days? and 2) If it did, was the evidence presented during the June 12, 

2013 hearing sufficient to establish by clear and convincing evidence that appellant was 
Fairfield County, Case No. 13-CA-61 9 

subject to the continuing jurisdiction of the trial court pursuant to R.C. 2945.39 and 

2945.401? 

{¶20} The docket of the first indictment demonstrates that from February 21, 

2012 to September 25, 2012, the general course of the case was that appellant was 

competent, and numerous trial dates and suppression hearings were scheduled. 

Therefore, we conclude with the September 25, 2012 agreed entry finding appellant 

incompetent to stand trial, an entire new restoration period commenced and the 

deadline for final restoration or the invoking of the trial court's continuing jurisdiction was 

September 25, 2013. As to the first question posed, we answer it in the affirmative. 

{¶21} Now we turn to the evidence presented during the June 12, 2013 hearing 

and review whether there was clear and convincing evidence to support continuing 

jurisdiction pursuant to R.C. 2945.39(A)(2)(a) and (b): whether appellant committed the 

offense with which he was charged and whether appellant is a mentally retarded person 

subject to institutionalization by court order. 

{¶22} At the time of the incident on December 25, 2010, appellant and the 70 

year old victim were residing in a group home and were receiving services from the 

Fairfield County Board of Developmental Disabilities. T. at 8-9, 25-26, 41-42, 47-48. 

The group home was run by Gregg and Tonya Seesholtz. T. at 6-8. Their son, Patrick 

Seesholtz, testified he observed appellant attempt to insert his penis into the victim's 

mouth. T. at 7, 9-10, 12. 

{¶23} Lois Everitt, an individual support coordinator supervisor with the Fairfield 

County Board of Developmental Disabilities, testified about a group meeting wherein 

appellant "did share that he did have his penis in the victim's face and that he had put 
Fairfield County, Case No. 13-CA-61 10 

his head - - or his hands on his head and held him there." T. at 25. Because of the 

incident that occurred, appellant had a need for special placement which was not 

available in Fairfield County. T. at 18-19. Appellant expressed to Ms. Everitt that he 

would leave the state and threatened to harm himself and others if he was placed back 

in a group home. T. at 20-21. Appellant was not capable of living by himself if released 

because of the "potential harm to the community, and the lack of funding to pay for the 

services that he may need." T. at 21, 26-27. She testified the victim is "very severely 

disabled." T. at 26. 

{¶24} Richard Patterson, appellant's individual support coordinator with the 

Fairfield County Board of Developmental Disabilities, testified to appellant's escalating 

issues concerning inappropriate sexual behavior with minors. T. at 44. Appellant 

expressed to Mr. Patterson that he felt "because of his disability, he could kind of do 

what he wanted to do and not get in trouble." T. at 46. Mr. Patterson described the 

victim as "profoundly mentally retarded" and unable to consent to sexual acts. T. at 47-

48. He opined appellant was not capable of living on his own and was unable to 

conform his behavior to the law. T. at 52. There was testimony of appellant's on-going 

sexual behavior toward other persons with mental disabilities. T. at 52-53, 73-76. 

{¶25} This testimony establishes, by clear and convincing evidence, that the 

state satisfied its burden under the first prong of R.C. 2945.39(A)(2). 

{¶26} As for the second prong, Leah Jaquith, Ph.D., a clinical psychologist with 

Appalachian Behavioral Healthcare, testified to her February 2013 evaluation of 

appellant for competency to stand trial and five reports of others she had reviewed, as 

well as medical records and court documents. T. at 92, 94-95. She testified appellant 
Fairfield County, Case No. 13-CA-61 11 

had a full scale IQ of 61 which is "in the middle of the mild category" for mental 

retardation. T. at 100. One of the reports Dr. Jaquith reviewed was an April 16, 2012 

report by Bradley Hedges, Ph.D., PCCS, of Mid-Ohio Psychological Services who 

opined appellant was "not restorable to competency." T. at 101. Dr. Jaquith disagreed 

with the report, opining that appellant "was restorable, and at that moment in time, in 

February, that he was restored to competence." T. at 101, 107. She stated appellant's 

apparent knowledge of the judicial process was more than a rote understanding. T. at 

104-107. She agreed that a "person can be presently not competent to stand trial, but 

restorable." T. at 112. Dr. Jaquith was unable to give an opinion on appellant's 

competency to stand trial at the June 12, 2013 hearing, but explained he could be 

restored because "he's been able to be restored other times, I would say that that 

probably remains the case, that that could happen again." T. at 115, 117-118, 121. 

{¶27} All of the cited testimony, coupled with State's Exhibits B, C, and D, 

establish, by clear and convincing evidence, that appellant is mentally retarded subject 

to institutionalization pursuant to R.C. 2945.38(A)(2)(b). 

{¶28} The September 25, 2012 agreed entry found appellant to be incompetent, 

but restorable. The only finding on the record and even in the testimony is that 

appellant is incompetent; therefore, we find the requirements of R.C.2945.39 and 

2945.401 to have been met. As to the second question posed, we answer it in the 

affirmative. 

{¶29} Given our ruling that the one year limitation was not violated, we do not 

find a constitutional violation of appellant's due process rights. 

{¶30} Assignments of Error I, II and III are denied. 
Fairfield County, Case No. 13-CA-61 12 

IV 

{¶31} Appellant claims the trial court erred in denying his motion to dismiss on 

speedy trial grounds pursuant to R.C. 2945.71. We disagree. 

{¶32} Pursuant to R.C. 2945.71(C)(2), a person against whom a charge of 

felony is pending "[s]hall be brought to trial within two hundred seventy days after the 

person's arrest." R.C. 2945.72(B) provides an extension for "[a]ny period during which 

the accused is mentally incompetent to stand trial or during which his mental 

competence to stand trial is being determined, or any period during which the accused 

is physically incapable of standing trial." As stated in R.C. 2945.71(E), "each day during 

which the accused is held in jail in lieu of bail on the pending charge shall be counted as 

three days." 

{¶33} Appellant was arrested on December 28, 2010. He argues from this date 

until February 12, 2013 when he filed his motion to dismiss on speedy trial grounds, 777 

had passed. He argues pursuant to the Supreme Court of Ohio's decision in State v. 

Adams, 43 Ohio St.3d 67 (1989), "any waiver of speedy trial resulting from the 

competency motion in 2011-CR-7 does not apply to a determination of Henderson's 

speedy trial rights under the present indictment in 2012-CR-533." Appellant's Brief at 

19-20. Adams is distinguishable and inapplicable in this case. Adams involved a 

voluntary waiver of time for trial. In the case sub judice, time was tolled when appellant 

filed a not guilty by reason of insanity plea and a motion to determine competency. The 

same plea was entered and the same competency issues remained when the case was 

re-indicted on November 30, 2012. 
Fairfield County, Case No. 13-CA-61 13 

{¶34} In its brief at 16-19, the state set out a detailed timeline of events in this 

case, concluding that thirteen calendar days or thirty-nine speedy trial days have 

passed. We agree with the state's calculations and the trial court's reliance thereon in 

its entry filed July 3, 2013. 

{¶35} Assignment of Error IV is denied. 

{¶36} The judgment of the Court of Common Pleas of Fairfield County, Ohio is 

hereby affirmed. 

By Farmer, P.J. 

Wise, J. and 

Delaney, J. concur. 

 

 

 

 

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